Nowicki v. Cannon Steel Erection Co.

Builders, [, der.” Aldon Inc. v. Kurland court for proceedings further consistent with 570, 826, Ind.App. opinion. 284 N.E.2d 832 this particularly ]. This is true when the. Judgment reversed and remanded. unequivocally new issue is not clear from presented at evidence trial. Id. “Im- MATTINGLY, JJ., KIRSCH and concur. plied unpleaded consent to trial of an de- may merely fense not be deduced because properly pleaded

evidence relevant to a inferentially suggests

defense a defense pleadings.”

not within County Elkhart Coop.

Farm Bureau v. Ass’n. Hochstetler

[, 280, (Ind.Ct.App.1981) 418 N.E.2d ]. Kile, (Ind. Apple v. 457 N.E.2d 256-57 NOWICKI, Appellant-Plaintiff, Frank addition, Ct.App.1983). In in K Corp. Mart Brzezinski, (Ind.Ct. v. denied, App.1989), trans. this court stated: CANNON STEEL ERECTION party may impliedly Before a consent to COMPANY, Appellee- issue, unpleaded the trial of an he must be Defendant. given some notice to the existence of No. 45A03-9803-CV-121. overt, may

that issue. Notice be as where unpleaded expressly issue is raised Appeals Court of of' Indiana. prior during to or sometime the trial but may before the close of evidence. Notice May implied presented where the evidence reasonably at trial that a competent is such

attorney recognized would have the un-

pleaded However, being litigated. issue as opposing may party put a new

issue a trial into under the cloak of evi- already pleaded

dence relevant to an issue. parties

Both litigate issue, must the new implied consent will not be found un- parties

less the know or should have unpleaded

known that the being issue was

presented. having record,

After reviewed the we con-

clude that possession the issue of adverse unequivocally

was not so clear from either presented

the evidence deposi- or the Mills,

tion of Vernon which was taken before

trial, reásonably competent that a attorney recognized

would have being it was liti-

gated.1 particularly This given true

the trial court sustained the Wamplers’ ob-

jection expressly relating to the possession.

issue of adverse Accordingly, we judgment

reverse the entered in favor of the

Tusings and remand this case to the trial Tusings point out that appeal submitted a pre-trial note on that the brief was not file pre-trial brief to the trial court on the issue of stamped, appears and it that such brief was not possession prior adverse evidence. to the introduction of filed with the beginning court until the of trial. However, Wamplers correctly Molen, Merrillville,

Mark Indiana, Van Der appellant. for Carton, Bullaro, A. Thomas Carton & Stone, Munster, Indiana, appellee. OPINION MATTINGLY, Judge Frank Nowicki filed against suit Cannon Company, Steel Erection claiming he re- personal injuries ceived damages aas employee’s1 result of a Cannon negligent operation of a crane. The trial court dis- complaint missed Nowicki’s for lack of sub- ject jurisdiction. matter Nowicki raises single whether, issue which we restate as purposes determining jurisdiction under Compensation Act, the Worker’s the trial properly determined that Nowicki and operator the crane co-employees. We affirm. argues Neither on party crane on Cannon's motion appeal dismiss, both parties' was an operator contractor or that independent counsel characterized the crane as a he was not a hearing Cannon At the e.g., Cannon employee. See, 461, R. at employee. 464, 477. resolu- pleadings, we court’s review AND HISTORY PROCEDURAL

FACTS by determining disputes tion of factual the trial favorable to The facts most erroneous; findings clearly are whether em- judgment that Nowicki was are court’s is, most favor- we consider carpenter by Custom Woodcraft- ployed as along reason- judgment to the with the able (Custom), company which a construction ers therefrom. inferences to be drawn able At and townhomes. frames for houses builds Inc., Raney Mfg., Lawson accident, of Nowicki’s time denied, reh’g (Ind.Ct.App.1997), trans. project required working on a reweigh We will not the evidence denied. lift crane roof trusses hiring of a service credibility A judge the of witnesses. Id. nor August the townhomes. On onto clearly when the record erroneous request a crane Custom called Cannon facts or reasonable inferences lacks project. A Cannon a crane for the Id. support it. assigned report secretary Battreall to James day. following Battreall project to the the Normally, upon the the burden falls any- any with did have further discussion not jurisdiction to that the party opposing prove reported to the one before he from Cannon However, jurisdiction. not does have court 5,1993. project August on employ public policy favors the inclusion of accident, day of and the the Nowicki On scope the of the Worker’s Com ees within installing roof four were Act, Davis, 663 N.E.2d at pensation under on some of the townhomes trusses provides the the Act that it is and itself carpenters construction. The Custom employment-related in remedy for exclusive tiuss, around the hooked the crane cable Laioson, juries by 678 occur accident. he then Battreall when could start advised Thus, involving in a an at 125. case N.E.2d spot lifting truss. Battreall’s view of the the the issue employee, once the defendant raises placed the truss to be was blocked where was Act, burden exclusivity the of the the of wall, employee signaled by a a so Custom prove employee the to that the claim shifts to the place that Battreall could Battreall so Davis, scope 663 outside the of Act. falls building. proper in the location on the truss reviewing the trial at 1179. When N.E.2d about a Battreall moved the truss within subject that it lacks court’s determination top wall. and foot from the of the Nowicki jurisdiction, judg we will affirm the matter carpenter preparing another Custom any theory supported by the evi ment on was unex- nail it when the tiuss raised down of record. Id. dence holding pectedly.2 Nowicki was the end fall and its caused him to the truss movement AND DISCUSSION DECISION provid- facts will be off the wall. Additional necessary. ed that Nowicki as The trial court found by employed both Cus and Battreall were OF REVIEW

STANDARD tom, a barring thus Nowicki’s claim as result determining exclusivity provision the Worker’s an on- of the When whether argues Nowicki that Compensation Act. the-job injury claim be dismissed for should Cannon, only by and subject jurisdiction, employed Battreall lack of matter affidavits, relationship employer-employee did may pleadings, that an court consider the Battreall and Custom. any In addi exist between and other evidence submitted. However, employment by tion, weigh Cannon may the evidence Battreall’s being jur him from an not exclude also requisite of the does determine existence employers Where two disputes. employee facts resolve factual Custom. isdictional Bent-A-Crane, Inc., together that both so associate themselves v. Central 663 Davis employee and he (Ind.Ct.App.1996). in direct are N.E.2d both, here, be con Where, he will is made accountable as the trial court considers employers. allegations employee an of both in in the sidered addition to accidentally sig- raised the question Battreall a Battreall was truss or whether There is whether by employee truss. error to raise naled in a Custom Corp. Cannon, Simpson, U.S. Metalsource indicating with parties’ belief (Ind.Ct.App.1995). N.E.2d The employee; Battreall was a Custom person may employee act same of one (5) Custom controlled the manner and entity aspects in certain transaction and completion job; means of Battreall’s part as an of another a different important question An of the business. Id. (6) length employment The was less context the dual is whether day; than one substantial, employers possess both but not exclusive, (7) necessarily right power or of con- Custom established Battreall’s work means, trol over the man- boundaries. performance.

ner of his and method Id. supreme established, court has Right Our Discharge applied, seven-part and the trial court test trial court’s Cus relationship determine whether such a ex tom had right an “indirect” discharge purposes ists for Compensa Worker’s Battreall supported by testimony tion Act. The seven factors are: Battreall that Custom any could fire him at (1)the (2) right discharge; the mode of time reason testimony from payment; supplying equip- tools or several employees they Custom that if (4) ment; parties belief of the in the exis- dissatisfied performance, with Battreall’s employer-employee tence of an relation- they would call Cannon and ask for a differ (5) ship; control over the means used in operator.3 ent crane We addressed a similar (6) reached; length employ- results right “indirect” discharge to in U.S. Metal (7) ment; and establishment of the work source, There, 649 N.E.2d at 685. Simpson’s boundaries. employer, a trucking company, arranged (Ind.1991). Kemp, Hale v. 579 N.E.2d 67 with U.S. Simpson Metalsource for to haul support In order to a determination that an some products. of Metalsource’s We deter employer-employee relationship exists be Simpson mined to employee be an of both parties, necessary tween the it is not that all Metalsource trucking and the company. Instead, present. seven factors be if a ma While Metalsource could discharge not jority present, employer- factors is Simpson from his with the employee Davis, relationship exists. See trucking company, we noted that it could 1180, citing N.E.2d at Fox v. Contract Bever Simpson’s employment terminate with Me- Packers, age Inc., (Ind. 398 N.E.2d by calling talsource trucking company Ct.App.1980),trans. denied. instructing it to send a different driver. findings supported acknowledges court’s Nowicki conclusion that Battreall was an U.S. Metal- result, of Custom and that source but notes there Worker’s was no evi- Compensation jur Board thus had exclusive dence that Cannon would have acceded to a request isdiction over replace Nowicki’s claim were: to Battreall with a different operator, appears argue to that Custom (1) Custom right had at least an indirect any right never “retained discharge to discharge Battreall; operator,” Appellant Brief of the at be- (2) indirectly paid Battreall re- cause attempt there was no to do so. It is imbursing services; Cannon for Battreall’s not person actually essential that a be dis- provided Cannon Battreall’s tools and charged right before a discharge can be equipment; established. The trial court did not err in (4) Custom had exclusive control and au- that Custom right had an “indirect” thority pursuant over Battreall discharge its contract Nowicki. represents 3. testimony However, Nowicki of the Cus- lant at 13. employees most of those employees they tom being "universally they also testified that if were dissatisfied with denied right discharge had the performance, they the crane Battreall's would call Cannon operator job Appel- from the site." Brief of the operator. and ask for different loss, damage injury property, or includ- Payment 2. Mode of equipment, arising manner ing the found that Custom The trial court duty operation. of Lessee’s Lessee’s out “indirectly by Battreall’s services paid for indemnify shall include. all hereunder Compa reimbursing Erection Cannon Steel expenses arising or out of all claims costs operator.” of the crane ny for the services herein, including all court specified and/or payment of this nature at 450.4 Indirect R. fees, costs, attorneys filing fees arbitration employ existence of an not defeat the does not and' costs settlement. Lessee shall Davis, E.g., relationship. ment required indemnify for its Lessor (crane was but, negligence, liability for Lessor’s sole paid though operator even lessee damage negligence caused sole lessee—instead, directly by paid lessee lessor Lessor, agents hereun- services). operator’s be limited to the amount of der shall Les- liability sor’s insurance. Supplying Equipment Tools and R. at testimony provided that Cannon There used in the crane equipment

most Agree asserts “the Crane Rental Cannon tag provided a operation, but that Custom express employ was an contract of ment necessary for the Since line which was lifts.5 ment,” Appellee Brief of Cannon Erec Steel Cannon, provided by of the tools were most disagree. Company at 25. We While tion weighs against co-employee rela- this factor may provision properly have contractual this tionship: considered as evidence the belief been parties, provi we to hold that this decline Employ- 4. Mutual Belief Existence of itself, sion, by had establishes- Relationship er-Employee authority over Battreall exclusive establishing employment an purposes for Hale, supreme In our relationship. express implied the an or called intent that is, a mu employment existed—that contract provision only indem This addresses employer-employee that rela tual belief an provision An is nification. indemnification tionship “primary consider existed—the covers the risk of harm sustained one which determining “loaned” in the status of a ation” by persons might be by third that caused at 67. trial court employee. 579 N.E.2d The indemnity agreement. to party the either parties that of the is “[t]he here found belief provision the financial burden a shifts Such the of the con best determined from terms damages from payment ultimate for the tract, and the between Cannon Steel contract v. the indemnitor. Morris the indemnitor to provided Cus Woodcrafters that and Custom 1219, 1222 N.E.2d Corp., 650 McDonald’s and had exclusive control tom Woodcrafters provisions such (Ind.Ct.App.1995). Because authority operator.” R. at over the crane primarily allocate the used between are agree the crane rental 451. section of damages responsibility financial parties trial court relied is upon ment which the cannot, they by by party, a third claimed “Indemnification,” provides: and entitled themselves, employment status. determine equip agrees the [Custom] Lessee that Thus, in the .persons operating such the statement indemnification all ment and before to the effect that Custom including provision us equipment, [Cannon] Lessor’s jurisdiction, supervision and employees, under Lessee’s exclusive had “exclusive are operator crane does control” over Cannon’s jurisdiction, supervision control Lessor, operator crane that agrees indemnify and save not establish Cannon’s necessarily Howev- all an of Custom. employees agents harmless from pro- er, injury application in of the indemnification persons, claims for death or necessary not all of this contract is cluding employees, and from vision Lessor’s provide argument in his provide argument brief Neither does Nowicki does in his 5. 4. Nowicki this factor. brief as to effect of to the effect of this factor. as 542 employment place that an relation- There them. was Battr-

determination evidence that begin signaled by existed between Battreall Custom. eall could not a lift until ship worker, the lift Custom and that after implied employment have found con We started, obliged Battreall was to follow the in circumstances it “was under tracts where signals a Custom because Battr- by parties employee] [the both that stood eall’s view roof was a wall. obscured work, expected to least to at would employees specific determined what day, period during of one or a that extent do, work Battreall was to and where and needed, day [employee] was when to do it. when he was Fox, [employer].” plant of 398 N.E.2d at implied in We found an contract similar Davis, In we found sufficient control to Heavner, Tapia v. circumstances 648 relationship demonstrate 1202, 1206(Ind.Ct.App.1995): N.E.2d employees when of a crane “directed lessee parties was understood both that operator] It [the crane and determined which work, Tapia expected would be at least lifted and loads he how he lifted them.” 663 part day, of her work at the offices operator N.E.2d at The crane there Indeed, depo- in her & Associates. Ohlson perform thought could refuse acts he Tapia admitted that “sort of’ felt sition she dangei’ous were and the lessee’s though separate employ- as she had “two stop operator could crane if felt his (Deposition Record at of Shab- ers.” improper. actions Id. Tapia). nam argues Nowicki that even if exert Battreall testified that he believed himself to Battreall, ed some control over it was not addition, employee. be a Custom In there enough support “substantial” the trial testimony relationship

was between court’s result. He describes evidence that Custom and the crane was the same partly was Battreall he did of how regardless portion of whether lifts, Inc., Sharp LaBrec, and cites agreement containing the indemnification (Ind.Ct.App.1994) N.E.2d 990 and Williams provision signed.6 say We cannot Marlin, Inc., (Ind. v. R.H. N.E.2d parties trial court’s that the believed Ct.App.1995) authority argument for his employment relationship was an there signaling operator during crane a lift clearly erroneous. opera does not constitute “control” over the tor. 5. Control over the Used in Means the

Results Reached Sharp and distinguishable. Williams are important question

An Sharp question the dual involved the of whether a employment context is whether “both em operator crane had “exclusive control” suffi- ployers possess substantial, satisfy not but neces cient that element of rule of the res exclusive, sarily right power or of ipsa loquitur support so as to giving the of a means, employee over the ipsa loquitor and the manner res instruction. 642 N.E.2d at Id., method performance.” quot of his opera- 995. found that We where the crane Fox, ing argues 398 N.E.2d at 711. Cannon tor had lifted the load it in and had held right perfor Custom’s position to control Battreall’s “locked down” for several minutes by mance of his duties the swung plaintiff, was evidenced fact before the load and hit the personnel that Custom told Battreall what opera- that was sufficient to show the crane lift, trusses, when to lift the and where to tor had “exclusive control.”7 In Id. at 994. example, employee 6. For one testified Custom as between Cannon Steel and Custom Woodcraft- follows: ers? Irrespective Q. you signed of Nope. whether have the A. agreements top or bottom or both on those that Id. at 239-40. relationship change, did not correct? A. Yes. company 7. It also be noted should that the that R. at 129-30. supplied supplied employee the crane also the Another testified as follows: signaled operator who the crane to raise Q. assuming you signed just So the bottom or lower the load. top any arrangement the would the different be an plaintiff found that the was not ease, dur- court the accident occurred present the independent an contractor when the there of lowering of load. As ing Battreall’s employees plaintiffs employer plaintiff direct- instructed that Custom the was evidence load, doing stop employer raise or lower the work he for the Battreall when to the was ed case, help not the Sharp, unlike does demonstrate subcontractor when sum- this by court operator’s “exclusive control.” moned the subcontractor. The the crane the work the sub- plaintiffs characterized Williams, that “[w]orkmen In we stated as “casual.” 579 N.E.2d at contractor operator ‘thumbs to a crane with a signaling hardly of con- assertion up’ constitutes case, present In the Custom determined However, the at 1153. trol.” many trusses would need be set and how not being in Williams was addressed issue require length of it would to set the time instead, was, solely It of control. one trusses. court did not err those The trial was the crane a “borrowed whether finding length that of In co-employee plaintiff. or servant” by determined Custom. was Williams, company no con- the crane had employer, plaintiffs the sub- tract with Boundaries 7. Establishment Work of that The evidence was contractor. The trial found that Custom only employer the crane oc- plaintiffs used Al Battreall’s work boundaries. established casionally purpose having the sub- for the did though Nowicki that Cannon concedes platform employees lifted to the contractor’s boundaries, he establish Battreall’s work working. no was where were There not do either. that did so asserts Custom the subcontrac- “control” Rather, argues he “the work boundaries indicating when the tor other than act inherently general contractor set employees should be raised. progress framing of town home as the each case, present In the the Custom Appellant at 20. Cannon ed.” Brief lift, to lift signaled Battreall what when argues conclusion was suffi court’s trusses, place them. In and where ciently supported by evidence that Custom addition, employees determined what con hours Battreall would work and set the do, specific work Battreall was and where of his work insofar trolled all the boundaries it. when he to do This is sufficient working hé would be as it determined where the trial support evidence to court’s doing. he and what would Battreall was under Custom’s control. guidance provide little useful Our decisions factor, ex- those decisions which for this Length Employment situations where plicitly address it involve The trial court determined “borrowing” operated plant employer employed by Battreall while employee was where the “borrowed” or office length employ day, than one “[t]he less help E.g., (temporary Fox sent to work. by ... was ment controlled Wood- assigned plant) and U.S. agency appears R. 451. Nowicki crafters.” (truck assigned to haul driver Metalsource improperly applied argue that this factor was In Metal- plant). from U.S. product steel using Cannon’s services because Custom was source, days, “circum- we noted that on some very for “temporary basis” and brief on Metalsource to call require would stances How period. Appellant Brief the at 19. of route accommo- change his driver] [the ever, suggest length the our actual decisions approval from buyers. No date different important employment not as as the of the required this trucking company] was for [the length the of the question of who controls change in route.” 649 N.E.2d at 685. We Fox, So, in we that an employment. found explicitly “work link to the that fact did relationship be employment was indicated factor. boundaries” employer] ‘borrowing’ [the cause “Contract nor Custom To the extent neither Cannon length of time Fox would be determined spatial said have established plant.” be required to work at the 398 N.E.2d could work, Hale, this factor contrast, for Battreall’s By supreme in boundaries at 712. our 544

may applicable not be here. Our Kemp, (Ind.1991), decisions Hale v. 579 N.E.2d 63 temporal do not indicate whether or other reviews the evidence on each of the factors may implicated “boundaries” be as well. and holds that the evidence is sufficient on a spatial might Boundaries other than ones sufficient number of the factors to conclude analyzed appropriately more be under that the trial clearly court’s decision was not appears That erroneous. “control” factor.8 to be the Williams, where, approach we in took under Rather, my public dissent is poli- based on “(7) Boundaries”, subheading Work we cy concerns and what I misap- believe to abe (5) only: supra stated “See Control.” 656 plication of by such concerns our In courts. light In N.E.2d at 1153. the extent opinion, majority iterates the oft- Custom’s control of Battreall’s work at the repeated “public statement that policy favors site, job say we cannot the trial court inclusion of scope within the finding that Custom established Battreall’s Compensation Act,” the Worker’s citing clearly work boundaries was erroneous. Rent-A-Crane, Davis v. Central 1177, 1179 (Ind.Ct.App.1996). purpose CONCLUSION underlying policy this was to insure that properly injured The trial court determined that workers workplace accidents in the Cannon’s crane employ- was also an employment course of their would receive the injured, ee of Custom when Nowicki was disability health and benefits mandated complaint its dismissal of Nowicki’s purpose is af- the act. The was not to immunize firmed. third-party tort feasors and liability their liability insurers from negligence

Affirmed. injuries results in serious to one who is not in employ. yet, their And that is the result of FRIEDLANDER, J., concurs. application foregoing policy to KIRSCH, J., opinion. dissents with cases such as the one now before us. application It is from the policy this KIRSCH, Judge, dissenting. injured burden is shifted to the respectfully I dissent. prove that the claim falls outside the cov- My dissent majority’s Davis, is not from the erage of the act. 663 N.E.2d at 1179. majority statement of the clearly, Here, law. The the trial court concluded that the em- correctly articulately analyzes ployee the seven had failed to meet his burden and the supreme factors set forth our in majority holds that conclusion was not clear- 8. The first Indiana decision to articulate the upon "es- If premises work is done of the em- tablishing of work boundaries” as one of the ployer machinery by with his workmen who employment relationship appears indicia an agree obey general regulation rules for the Miller, 326, 330, Ind.App. Gibbs v. 152 employees, of the conduct of the inference is (1972). N.E.2d Gibbs cites to Lazarus strong that such workmen are servants of the Scherer, Ind.App. 174 N.E. 293 if, however, only owner ... rules are made (Second) and to the (1958); however, Agency § Restatement general policing premises, as where a authority explicitly neither separate groups number of of workmen are mentions "work boundaries” as a factor. In employed erecting building, mere con- Lazarus, plaintiff we noted that the was on the formity regulations to such does not indicate premises engaged defendant's in work for that the workmen person are servants of the injury defendant’s benefit when the took making the rules. place. We went on to state that the "decisive So, Lazarus, suggests like the Restatement work test” of right relationship was the significant boundaries are in a dual Ind.App. of control. 92 174 N.E. at only context to the extent evidence which entity greater exercises control over the em The Restatement does indicate that one factor see, ployee. e.g., Thompson And v. Travelers In to be determining considered in whether one R.I., (Tex.App. dem. Co. 777 S.W.2d acting for independent another is a servant or an of 1989) (right the details of provides work "is place contractor is who "the of work for person (Sec- tire ond) shown such doing matters as when and where to work.” Restatement work.”). 220(2). Agency begin stop § Comment to that part: section states in clearly some there is ly While erroneous. court’s conclu- support

evidence factors, that seven Hale on each of the

sions fac- conclusive on and, if not shifted the burden were

tors clearly support injured employee, would contrary conclusion.

a example, point I to the first two

By way of court, that the trial

conclusions of right

indirectly discharge retained a

indirectly paid crane The evi- operator. supporting these conclusions was that

dence requested assign Cannon could have operator if it dissatis- crane different assigned and that Custom with the one

fied

paid Cannon for the services opera- compensated in turn

and Cannon every independent contractor Virtually

tor. rights indirect

arrangement involves such obligations. policy this public it is the state

If third-party tort feasors and their liabil-

allow

ity insurers to use the Indiana Worker’s

Compensation Act as shield liability their

immunize from for themselves injuries resulting in

wrongful serious acts another, policy it is a then I re-examined. would not

which should be way, policy in this would not shift

apply the injured employee, and

the burden to this case to the trial court

would remand

further consideration. RUSSELL, Appellant-Defendant,

Sherrell Indiana, Bloomington, Harper, D. Teresa Attorney Appellant. Indiana, Appellee-Plaintiff. STATE Modisett, Attorney Jeffrey A. General 49A02-9803-CR-224. No. Attorney Indiana, Deputy Froug, E. Randi Appeals Indiana. Court of Indiana, General, Attorneys for Indianapolis, Appellee. 23, 1999. June Aug. Denied

Transfer OPINION

FRIEDLANDER, Judge Murder,1 charged with Sherrel Russell Arson, felony,2 A after her room- class (West 1998). (West 1998). §Ann. 35-43-1-1 § Ind.Code Ind.Code Ann. 35-42-1-1

Case Details

Case Name: Nowicki v. Cannon Steel Erection Co.

Court Name: Indiana Court of Appeals

Date Published: May 17, 1999

Citation: 711 N.E.2d 536

Docket Number: 45A03-9803-CV-121

Court Abbreviation: Ind. Ct. App.